Late last week, Trump quietly signed an executive proclamation invoking the 1798 Alien Enemies Act — a law meant to let the government quickly deal with literal foreign enemy combatants on U.S. soil — to declare that the Tren de Aragua gang, which most Americans hadn’t heard of until it became the bogeyman du jour, was a functional arm of the Venezuelan government and effectively a military incursion.
This nonexistent wartime stance was used as the justification for the government to summarily detain and remove any Venezuelan noncitizen or nonresident over 14 years old that it believed — with or without any basis — to be a member of the gang. In a move that was clearly orchestrated in advance, the administration quickly began loading up planes with hundreds of Venezuelans bound not for Venezuela, but El Salvador, where local despot Nayib Bukele — who I called a sort of prototypical millennial autocrat back in 2021 — had struck a deal with the Trump administration to house detainees in its hellish CECOT mega-prison.
The speed of all this meant that, by the time the ACLU, which was already representing five individual plaintiffs potentially subject to the order, sought a nationwide injunction from D.C. District Judge James Boasberg, planes were already in the air. In a tense Saturday night hearing, Boasberg stopped the government from removing anyone under the proclamation and ordered it to turn the planes around.
By Sunday morning, it had become clear that at least a couple of planes had landed anyway and been transferred their detainees over to Salvadoran custody, probably logistically preventing their return to the U.S. despite Boasberg’s order. The administration has yet to release anything like a full list of detainees or anything resembling evidence that they were, in fact, gang members. Some family members and friends have begun identifying some of the detainees from propaganda videos put out by Bukele’s security forces, and alleging that they were arrested solely on the basis of, for example, innocuous tattoos.
Since then, Boasberg has been trying to get answers on what would appear to be a pretty cut-and-dry violation of his order, which the government has barely even attempted to dispute. The jaw-dropping contentions include that because Boasberg initially made the order verbally, it somehow didn’t count until it was on paper; that his jurisdiction over these federal agencies somehow stops at the U.S. border; and, most shockingly, that the judiciary lacks the authority to review these decisions in the first place, as they are akin to the president’s use of military powers, which is absurd. Boasberg was practically incredulous in a hearing on Monday as Justice Department attorney Abhishek Kambli refused to answer basic questions about the flights, including what time they took off.
Most of the public conversation around this is as an immigration case, and indeed it is, but I think it’s an error to view it as a case whose outcome is limited to the immigration sphere. I and others have long maintained that immigration is often a kind of tip of the spear for broadening executive authorities more generally, ideally suited as an area of federal policy where the executive already does have pretty broad powers and which Congress has over the years more or less washed its hands of.
The reality is that, legally and politically, noncitizens are ‘other’ — literally unable to participate in the most basic act of civic participation, voting — and subject to an entire enforcement apparatus that simply doesn’t exist for the native-born, which makes this an area to test limits and arguments. This has been true of the nation’s widening surveillance systems, for example, as well as the use of private detention. Here, what the administration seems to be testing is the constitutional order writ large.
That might sound like an exaggeration but I want to emphasize that it is not. In court and their filings, government attorneys have been explicitly arguing that Boasberg’s questions are themselves inappropriate and that they don’t have to answer them, that the federal judge lacks jurisdiction or the ability to review their decisions, and that the president has some sort of extra-statutory inherent Article II power to carry this order.
As a reminder, the practical upshot of the order is that hundreds of people whose identities and even legal statuses are largely unknown have been detained on U.S. soil on secret, unacknowledged evidence and, without any trial or hearing, been loaded onto charter planes to be flown to a third nation where a clientelist strongman is being paid to keep them in perhaps the world’s most brutal mega-prison and labor camp. That’s what we’re talking about here, underneath all the legalese. The government attorneys are advancing the position that this is not only the president’s absolute prerogative but that the courts cannot review it and it is beyond the pale for judges to even look into this.
In a filing in response to Boasberg’s demands that the government answer basic factual questions like when and how many planes took off for El Salvador in a specific effort to gauge whether the administration had intentionally violated a federal court order — questions that are largely answered by publicly available data and the literal camera crews awaiting the detainees’ arrival — the DOJ attorneys seemed almost indignant. The document, signed by officials including Attorney General Pam Bondi, calls these proceedings “a picayune dispute over the micromanagement of immaterial factfinding” and lays out that the government might invoke state secrets to refuse to answer basic questions. Trump, in one of his social media rants, called for Boasberg to be impeached, prompting an exceedingly rare if lukewarm rebuke from Supreme Court Chief Justice John Roberts.
This is, and I do not use this word lightly, openly fascistic. For all of its abuses and efforts to stretch presidential authority, I don’t recall any instance during Trump’s first term when the administration brazenly and openly violated a federal court order, publicly acknowledging that it had, and telling a judge to shut up about it. This is new territory, and it is also a line of reasoning that, if it at all works, is certainly not going to stop with this case. I can’t imagine a scenario where “the president is unconstrained by statute and above the courts, who are not empowered to question, let alone block, his orders in the interest of national security” as an even semi-successful argument doesn’t then bleed into every other area of federal policy.
Could anyone attempt to enforce environmental and anti-pollution standards when the administration takes for itself the supposed inherent authority to safeguard the national interest by signing off on unrestrained dirty energy production? Could we continue to enforce civil rights law, even constitutional amendments the president doesn’t like? If no one checks the president’s power, why not?
I know I sound like a broken record on this, but we need serious and consistent public pressure against these things. Congress has laid down and the judiciary is fighting the branch of government that controls law enforcement, including the U.S. Marshals tasked with enforcing judicial rulings. This might all seem very abstract or legally complex, but at base level it’s about whether we are to have a king or not. Make it known that we don’t want one.
